Vice President Lien Chan (
The establishment and development of international human rights law after WWII can be looked at in two ways. First, there have been numerous international agreements under the umbrella of the United Nations. Seven articles in the UN Charter touch upon the issue of human rights. The Universal Declaration of Human Rights delineates the fundamental framework of human rights. Thereafter, more than 100 agreements relating to human rights were entered into under the UN system.
Some of the more well-known agreements include the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Declaration on the Rights of Children, among others.
Illustration: Yu Sha
These various agreements have lead to the establishment of monitoring agencies to supervise the participants' implementation of duties under the agreements.
Outside the UN system, three important organizations in Europe play a critical role. The first organization is the Organization of Security and Co-operation in Europe which protects human rights through diplomatic channels. The second organization is the Council of Europe, which has already put in force the European Convention for the Protection of Human Rights and Fundamental Freedom, the European Social Charter and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, among others. The third organization is the European Union (EU) which deems human rights protection principles as a general principle of law applicable to all legal litigations. All three set as a precondition for membership the adherence to human rights protection principles.
There have also been several international agreements covering other regions of the world, including the African Charter on Human and People's Rights, the American Convention on Human Rights and the Bangkok Declaration.
The biggest milestone in regional human right laws was the establishment of regional international human right courts in Europe and America. One thing worth noting is that the scope and breadth of international human rights far exceed the extent of protection offered by the various national Constitutions.
Since 1990, many countries have begun to incorporate international human rights agreements or standards into their national Constitutions by one of the following manners:
1. Constitutions can mandate the recognition of and compliance with international human rights agreements. For example, the Constitutions of Laos and Afghanistan require the recognition and compliance with the UN Charter, the Universal Declaration on Human Rights and other international human rights agreements.
2. Constitutions can require that the interpretation and application of the human right provisions in the Constitution shall be in compliance with the international human right agreements and standards. Romania, Portugal, Spain, Rwanda, Congo and South Africa, among others, have such provisions or similar ones in their Constitutions.
3. Constitutions can mandate that the executive organs must ensure the implementation of fundamental human rights and international human rights. The Finnish Constitution serves as an example of this.
4. States of the British Commonwealth make special legislations for the protection of human rights. For example, Canada's 1982 Charter of Rights and Freedoms was modeled after the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. New Zealand's Human Rights Act 1990 and Hong Kong's Bill of Rights Ordinance 1991 implemented the mandates of the International Covenant on Civil and Political Rights. The UK's Human Rights Act 1998, on the other hand, applies the standards of the European Convention for the Protection of Human Rights and Fundamental Freedoms domestically.
Our Constitution, drafted in 1946 and put into force in 1947, was a product of post-WWII Constitutionalism. At the time, international human rights law was not yet fully developed. Therefore, the issue of international human rights did not come up during the drafting process. Before Taiwan withdrew from the UN in 1971, it did not actively participate in international human right agreements, due to its lack of focus on human rights protection. In the wake of its withdrawal from the UN, Taiwan is not even in a position to participate in any international human right agreements.
Due to an unfamiliarity with international human rights laws, the 1991 Constitutional amendments and several subsequent amendments have neglected to protect people's human rights, let alone incorporating international human rights standards into the Constitution.
There are four ways to incorporate international human rights standards into our national legal system.
1. Incorporate international human rights standards into Section 2 of the Constitution.
2. Make new laws and amend existing laws to provide for detailed international human rights standards and mandate compliance therewith.
3. Interpret Article 22 of the Constitution (the general clause guaranteeing "all other rights and freedoms") to include the international standards.
4. Recognize international human rights standards as customary international law and applicable to all disputes before the courts, so that judgements and verdicts would be compatible with international standards.
The third and fourth methods rely on judicial law-making. Since the judiciary can only intervene when parties bring a suit, these two methods may be relatively time-consuming. Therefore, they may be acceptable approaches before the passage of new laws and amendments of existing laws, but they are not appropriate long-term solutions. A better approach should entail the amendment of the Constitution and laws and passage of new laws.
Of course before any legislation or amendments take place, what is most needed is an in-depth understanding of international human rights standards. Otherwise, how could we ensure new amendments and legislation will comply with international standards?
Liao Fu-te (廖福特) is a visiting assistant professor of law at Tunghai University.